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COA rules on landowner first-impression issue

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For the first time, the Indiana Court of Appeals needed to decide whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree falling from the landowner's property.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, No. 20A03-0908-CV-366, Cindy Cain's home is next to a vacant lot owned by Marjorie Marshall, which John helped to manage. Elkhart code enforcement told them that a tree on the lot needed to come down, so John had a professional arborist inspect the tree. The arborist just visually inspected the tree and determined it didn't need to be taken down. The tree later fell onto Cain's house. Her insurer, Erie, reimbursed her for the repairs and brought a suit against the Marshalls for damages for negligent maintenance of the tree. Marjorie died before the bench trial concluded.

The trial court entered judgment in favor of Erie; John filed a motion to correct error, which the trial court denied.

John argued there was insufficient service of process upon Marjorie. Even though someone else signed the return receipt indicating the notice was received, the service by mail was effective, ruled the appellate court.

John also claimed the trial court erred in finding they owed a duty of care to Cain. Judge Margret Robb wrote it would appear the Restatement (Second) of Torts section 363 forecloses the issue of whether the Marshalls owed any duty to protect Cain from the fallen tree. But that would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure a dangerous tree just because it was a natural condition of the land. Like several other states, the appellate court adopted a reasoning that departed from the strict application of the rule in context of urban or residential property.

Living in close quarters substantially increases the risk that a falling tree will cause damage or injure someone, and similar to the problem relating to a highway - as mentioned in the Restatement rule - the reduced size of property lots in an urban or residential setting make the burden of time and money to inspect and secure trees relatively minor especially as compared to the potential damage that could result from the tree's fall, she wrote.

The appellate judges held that an urban or residential landowner has the duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the conditions of trees on his or her property.

The trial court properly applied a duty of reasonable care to the Marshalls, and properly found that sufficient evidence supported the Marshalls breached that duty and that John was jointly and severally liable since he acted as Marjorie's agent in care of the lot.

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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